Thursday, May 10, 2012

Today as I was standing in line at my favorite lunch joint when my cell phone rang. The number that popped up was that of GOP gubernatorial candidate Ken Miller.

If you read today’s profile of Miller you might recognize the number because it is the same number Miller asked all Montanans to use to reach him on the campaign trail.

I answered the phone expecting Miller might want to chat about the recent article, but he didn’t even give me a chance to say hello. Actually, it wasn’t really Ken on the other line. It was a recorded version of Ken:

“Hi. This is Ken Miller. If you haven't heard I'm a grassroots tea party-endorsed conservative running for governor of Montana. The Miller momentum is growing like wildfire across this state and with my running mate Bill Gallagher, we are winning straw polls everywhere. You may have seen our green and blue signs in your area. I hope we can count on your vote for Miller-Gallagher by June 5th. I'd love to hear from you today. I'm Ken Miller. Feel free to call me on my personal cell 670-8318. This call is paid for by Miller for Governor box 325 Lower Montana.”

Commissioner of Political Practices Jim Murry, who on Thursday denied Miller’s request to dismiss an ethics case filed by Miller’s former chief fundraiser, said he also received Miller’s robo-call. Murry said his office has already received several complaints, which he turned over to Lewis & Clark County Attorney Leo Gallagher.

In addition to Miller, people have recently reported receiving robo-calls from Montana Conservation Voters urging recipients to vote for Democratic Attorney General candidate Pam Bucy and Democratic gubernatorial candidate and current Attorney General Steve Bullock.

It seems like I write at least one story each election cycle about candidate or campaign using robo-calls. Candidates from both parties like to complain about how their opponent’s use of robo-calls is “illegal” and “unethical.” That might be true.

But what’s also true is candidates from both major parties use them every year.

In 2008 Republicans griped that the Montana Democratic Party was using robo-calls to support Democratic Superintendent of Public Instruction candidate Denise Juneau. (sorry, the article is archived so no link).

"We believe that free speech is protected by the U.S. Constitution, and we are going to do everything that we can to make sure that every voter has the opportunity and ability to vote," O'Brien said Wednesday in 2008.

Last year Bullock sided with attorneys general from across the country in opposing a federal law that would have made it more difficult for states to enforce bans against robo-calls to cell phones, but he’s apparently benefitting from MCV’s during this election season.

Gallagher said his office received several robo-call complaints Thursday. Gallagher has long been sick of the calls, which he says are illegal.

“What I've done in the past is I’ve written a letter to each party and advised them that robo-calls violate 45-8-216 and I asked them to please advise anybody who asks them that they are a violation of state law and if they do it they'll be charged,” Gallagher said.

However so far no county attorney has ever brought charges against a political candidate or third-party group for making robo-calls in Montana.

So why doesn’t anyone enforce the law against robo-calls? Here’s how one long-time campaign organizer explained it to me:

“I'm told the legislative language directly contradicts 1st Amendment precedents. Nobody will bring suit or levy fines because there is too much precedent to overturn, and losing in court would effectively tell everyone it's ok to do autodials, which would remove any hesitation the legislative language might give candidates.”

For his part, Miller said he and his campaign advisors believe the calls going out this week are legal.

“We've done a lot of research on it, and it is our opinion and it is the opinion of many others” that robo-calls are legal, Miller said.

“We felt that we could be at a disadvantage to our competition if we did not use them, and we wanted to be a step above so we made sure that the caller ID has my personal cell phone number on it,” Miller said.

If you ask me, until a county attorney brings charges and the matter is settled in court once and for all, robo-calls during election season will be as perennial as daffodils, green grass, and apple blossoms blowing on a warm spring breeze…just not as pleasant.